STANDING COMMITTEE ON LEGISLATION ELECTORAL AMENDMENT BILL 2020 TRANSCRIPT OF EVIDENCE TAKEN AT PERTH FRIDAY, 9 OCTOBER 2020 SESSION TWO Members Hon Dr Sally Talbot (Chair) Hon Nick Goiran (Deputy Chair) Hon Colin de Grussa Hon Simon O’Brien Hon Pierre Yang __________ Legislation Friday, 9 October 2020 — Session Two Page 1 Hearing commenced at 1.32 pm Mr ROBERT KENNEDY Electoral Commissioner, Western Australian Electoral Commission, sworn and examined: Mr LOUIS GARGAN Manager, Legislation, Communications and Human Resources, Western Australian Electoral Commission, sworn and examined: Ms SABRINA DURHAM Senior Electoral Liaison Officer, Western Australian Electoral Commission, sworn and examined: The CHAIR: I will open the hearing by thanking you for coming this afternoon. We are broadcasting the hearing so if you have any private documents, keep them flat on the table, and they will not be picked up by the cameras. Could you each take either the affirmation or the oath. [Witnesses took the oath.] The CHAIR: Can you each confirm that you have read and understood the document that you have signed, “Information for Witnesses”? The WITNESSES: Yes. The CHAIR: These proceedings are being recorded by Hansard and broadcast on the internet. The broadcast will also be available for viewing online after the hearing. If you have any objections to the broadcast being made available in that way, please let us know. A transcript of your evidence will be provided to you. To assist the committee and to help Hansard, could you please give the full title of any document you refer to during the course of the hearing. I remind you that the transcript will be made public. If for some reason you wish to make a confidential statement during today’s hearing, you should request that the evidence be taken in private session. If the committee grants your request, any public and media in attendance will be excluded from the hearing. Until such time as the transcript of your public evidence is finalised, it should not be made public. I advise you that publication or disclosure of the uncorrected transcript of evidence may constitute a contempt of Parliament and may mean that the material published or disclosed is not subject to parliamentary privilege. I will invite you to make an opening statement but I think you indicated that you do not need to do that. Mr KENNEDY: Yes. The CHAIR: We will cut straight to our questions. I will start by asking you about the ban on foreign donations. The committee understands that most of the political parties that are registered in this state are already covered by the ban on foreign donations because of the application of the commonwealth act because they are registered under that act. Is that correct; and, if so, what differences are there in the proposed provisions in this bill and the commonwealth act; which parties are already banned from taking foreign donations under the commonwealth legislation; and which WA parties would be covered by the new provisions only? Mr GARGAN: Madam Chair, basically, the commonwealth Electoral Act is a matter for the AEC. This current ban on foreign donations is a matter for government. We were told by the government that they wanted to ban foreign donations in Western Australia so we acted on that instruction. This current ban would, basically, ban political parties, candidates, Legislative Council groups and other Legislation Friday, 9 October 2020 — Session Two Page 2 persons from receiving a foreign donation unless that person is an Australian citizen or has an Australian business number. Hon NICK GOIRAN: Are the political parties that are currently registered in Western Australia currently prohibited by commonwealth law from receiving foreign donations? Mr GARGAN: Mr Goiran, I would think that if the WA Liberal Party accepted a foreign donation, it would not be against the Western Australian legislation. I think the WA Liberal Party, for the purposes of the WA election, could take a foreign donation and it would not be against the WA Electoral Act. Hon NICK GOIRAN: No, but what about the commonwealth act? I think that is the question from the chair. Mr GARGAN: Again, Mr Goiran, I cannot comment on the commonwealth Electoral Act. Hon NICK GOIRAN: If a political party from Western Australia takes a foreign donation, the Western Australian Electoral Commission is unaware whether that would be in breach of commonwealth law or not? Mr GARGAN: I will answer it the best way I can, Mr Goiran. Sabrina may want to comment on this because she works in that area, but if we got a complaint from someone saying, for example, the WA Liberal Party received a foreign donation, under the WA Electoral Act, it is not an offence. Hon NICK GOIRAN: You would take no further action? Mr GARGAN: No. I do not see how we could. Hon NICK GOIRAN: You would not refer it to the Australian Electoral Commission? Mr GARGAN: It is a totally different jurisdiction. It is different legislation. The commonwealth Electoral Act has got no bearing on the WA Electoral Act. Hon NICK GOIRAN: There is no memorandum of understanding? There is no dialogue that takes place between the two organisations? Mr GARGAN: The electoral commission may — Mr KENNEDY: Not on an official basis. There is no memorandum of understanding that requires me to report those sorts of matters to the AEC. If I believed it was necessary, I could. Mr GARGAN: Mr Goiran, during the next election coming up, if someone made a complaint to us about the Labor Party or the Liberal Party receiving a foreign donation, I would assess it is not an offence under the WA Electoral Act. Hon NICK GOIRAN: To what extent is the ban on foreign donations that is put in place as a result of this bill consistent with the laws in other jurisdictions in Australia? Mr GARGAN: Mr Goiran, I think different jurisdictions have bans on foreign donations—New South Wales has it and Queensland has it—and they are all different. This model, I believe—the government chose, not the WA Electoral Commission, because we were just given a direction—was based on the Victorian model, which is a complete ban. The AEC model allows small foreign donations up to $100, so they are subtly different. Why the government decided to ban foreign donations and that particular model, I cannot answer. Hon NICK GOIRAN: The Western Australian legislation is most consistent with the Victorian regime? Mr GARGAN: This model is based on the Victorian model. The argument is that it is simple. People can understand it. Minor parties could understand it. You do not have to have a legal background or a compliance background to understand that you have to be an Australian citizen or you have to Legislation Friday, 9 October 2020 — Session Two Page 3 have an Australian business number to give a donation to a political party, whereas I think if you look at the definition in the commonwealth Electoral Act, it is a very complex thing. Hon NICK GOIRAN: To what extent is the Western Australian ban on foreign donations different from the Victorian legislation? Mr GARGAN: Sorry. What was the question again? Hon NICK GOIRAN: What is the difference between the Western Australian ban and the Victorian ban? Mr GARGAN: None. I think it is based directly on that, Mr Goiran. [1.40 pm] Hon NICK GOIRAN: Okay. The only difference with the commonwealth legislation is the definition? Mr KENNEDY: Principally. Mr GARGAN: I have no idea if the committee has had a look at the commonwealth brochure on foreign donations. I have no idea if you have had a look at it, but it is worth having a look at. It is different. You can make foreign donations under the commonwealth legislation up to $100. This particular bill, if it was passed by the WA Parliament, would be a complete ban on foreign donations. The commonwealth one is not a complete ban on foreign donations. It is subtly different. Hon NICK GOIRAN: Okay. One of the differences is the threshold, is it? Mr GARGAN: Again, in the commonwealth model, you can make a foreign donation up to $100. From then, up to about $15 000—the commonwealth donation threshold is $14 300—very different to WA. They are very different things, Mr Goiran, under very different legislation. Hon NICK GOIRAN: A foreign donor could not donate $14 000 under the commonwealth law, could they? Mr GARGAN: No. Hon NICK GOIRAN: But they can donate up to $100? Mr GARGAN: Up to $100—yes. One is a complete ban; one is not a complete ban. That is a matter for policymakers and parliamentarians to make that decision, not for us. Hon NICK GOIRAN: It is up to $100, is it? The instant you go beyond $100—or is it you are allowed to donate — Mr GARGAN: This is the AEC document on foreign donations. It may be useful to have a look at it. It is pretty straightforward, if you want to look at. Hon NICK GOIRAN: I am very interested in looking at all documents across the nation. I am just making sure that I properly understand the distinction between the Western Australian regime and what else is available. Mr GARGAN: Basically, what the AEC document says is that political parties and political campaigners are restricted from receiving gifts of $100 or more. You can receive a foreign donation up to — Hon NICK GOIRAN: As soon as you hit $100, then you are out? Mr GARGAN: Again, I am reluctant to comment on the AEC legislation, Mr Goiran.